Question for JohnT..sort of long

Hey, JohnT I"ve seen you answer a good many legal questions on here and I"ve got sort of a general one for you. What would it be called, and would it be a violation of ethics/law/etc to put something in a case file without going through the proper channels and having it file stamped, etc? In this case it"s a report from a therapist dealing with my stepdaughter and her biological father. The origional court order stated the therapist was to return to court and give a report, not write one nearly 6 months after dropping her services. Too when the report was written it was sent to opposing counsel (who we assume put the copy of it in the file) and not to us. We just happened to find out about it several weeks after the fact and were able to obtain a copy ourselves. That said, we went to the courthouse the other day for a support related matter (him not paying but wanting it reduced anyway) and pulled the file and found a copy of the report in it that was not file stamped. According to the clerk the only things in a file that don"t get stamped are court related papers about the case (ie papers showing hearing dates, etc) but not really pertinant to the case itself. He said that even though the report was never introduced into evidence at a hearing ((then it would have been stamped and file automatically)) or anything that it should have still had to go through "proper channels" and be stamped before being placed in the file.

So, the only way the report could have gotten into the file unstamped would have been for opposing counsel to have placed it there when reviewing the file as we are 99.99999999% sure the biological father wouldn"t have done it as he most likely doesn"t even know the file exists or where to get it if he did.

Given the issues in this case we wouldn"t put it past the opposing counsel to pull a stunt like this in an attempt to allow the judge to see the report without us having any chance of rebuttal as to it"s contents since they place my wife and I at fault for the lack of a relationship between the biological father and the child...yet fails to mention the fact that he refused and continues to refuse to even call and talk to the child as she ordered him to do by the therapist and was all but begged to do, in writing by us. Too there"s no mention of the fact that he spent supervised visits with her talking on his cell and off smoking (which was in violation of the order), etc, etc. In other words he takes absolutely no responsibility for even trying to form the relationship he said he wanted beyond emailing and saying "bring her to me" yet it"s our fault that the child is still ambivilant toward him and doesn"t care to spend time with him.....

It"s a way longer story to say the least but, like I said, given the way things have gone I wouldn"t put it past opposing counsel to put the report in the file in an attempt to allow the judge to see it while reviewing it for a support related matter (him not paying) in somewhat of an attempt to "discredit" us while giving us no real chance at rebuttal.........

Got to be something illegal, underhanded, unethical, etc about doing something like this, just not sure what it is....Can you tell me what, if anything is being violated by putting something into a file like this without it either being presented as evidence or going through "proper" channels...WITHOUT OUR KNOWLEDGE......Seems like it could almost be viewed as an attempt at ex-parte communication with the judge as we were never informed it was in the file.......Any advice would be greatly appreciated as my wife has had to handle things since the origional trial pro-se since the first round broke us financially. The biological father on the other hand still has a lawyer hanging on who, from what we understand, wasn"t completely paid for the first trial and still isn"t getting paid.

On that note a second question. What reasons would make/force a lawyer stick with a client who isn"t paying him? Heck this guy is worthless and opposing counsel knows it and has all but stated it to us yet he keeps representing him. At least he has so far....even though he did fail to show up at the latest calander call to reschedule a hearing asked for by his client back in Feb seeking to reduce the support payment he only makes part of anyway. Needless to say the case isn"t being heard so his client is still stuck with the origional judgment amount..... Anyway, what would/could force a lawyer to stay with someone like that????

Any insite into this would be greatly appreciated. If you want to answer direct my email is [email protected] THANKS

You need to talk to a attorney who has a law practice in YOUR state.

Only a fool seeks legal advice on a internet tractor forum from someone who claims to be a lawyer.

Ne offence to JohnT but anyone claim to be anything on the net.

Wayne, as you know I try my best to help when I can if its an area I practice in and dont have to do a bunch of timely research, but this question might better be answered by Mike or Dean who currently practice, unlike my semi retired now mostly paperwork legal practice. I haven't litigated since I defeated Wal Mart in a Jury trial and thats been like 10 years ago, I wanted to quit while I was AHEAD LOL and Jury trials require wayyyyyyyy tooooooooo much work.

ACTUALLY this is best answered by LOCAL PROFERSSIONAL ATTORNEYS more familiar with the laws of your jurisdiction and IS NOT something attorneys can or even should try to answer here, let alone lay persons.

That all being said, I will offer the following which IS NOT legal advice and is worth just what Im charging NOTHING

When filing a Pleading, one submits it to the Clerk of Courts who File Stamps it then enters it into the Courts Official Record/File. AND when a pleading is filed YOU MUST CERTIFY A COPY OF THE SAME IS BEING SERVED ON OPPOSING COUNSEL (or pro se party). In our jurisdictio we can and MUST certify service to the opposition by doing so on the face of the pleading where we may testify something like "I hereby certify a true and accurate copy of this pleading was served on opposing counsel by placing it in an envelope and depositing in the US Mail postage paid adressed to so and so" Any party MUST BY LAW when filing a pleading serve a copy to the opposing party. Likewise, no one party can have ex parte communication with the Court, BOTH PARTIES MUST BE PRESENT.

THEREFORE if I discovered a pleading or other evidence (not tendered and accepted as evidence in Court, but do you know that for sure?????) was in the Courts official records and I was the opposing party and such was not furnished to me, and was NOT accepted into evidence in Court, I WOULD FILE A MOTION AND REQUEST A HEARING QUESTIONING THAT DOCUMENT. Thats not all that hard to do, file a Motion and submit it to the Court AND DONT FORGET TO SERVE A COPY ON THE OPPOSITION. If at a hearing a party tendered a document into evidence the opposition has an opportunity to challenge it and if not or the Court allows it, it then IS a matter of official record regardless if it bears a stamp, so dont jump the gun here, maybe it was tendered and accepted and was it or was it not served on you if an out of court pleading?????

As far as an attorneys continued representation, so long as he has not petitioned for withdrawal as the attorney of record and the Court permitted it HE OR SHE IS STILL THE ATTORNEY OF RECORD even if he never sees or talks the the party ever again. Now why an attorney may continue to reprsent someone who doesnt pay I CAN NOT ANSWER

Hope this helps, Best Wishes and God Bless

John T, BSEE (Bachelor of Science Electrical Engineering) Purdue University, JD (Doctor of Jurisprudence) Indiana University, Supreme Court of the State of Indiana Attorney No 17757-53.

Wayne, it is common around here for psych reports to get sent to the Court and Judge in Cinc cases and some domestic cases as well as psych, drug, and alcohol evals in criminal cases. Many times the court maintains 2 files, the public record and the non-public stuff. Sometimes mental health facilities are so used to sending reports to the courts that they do so even when they shouldn't. Particularly if they are doing it pursuant to court order.

Judges have better things to do than sit around and read the reams of paperwork that gets submitted to the court and placed in files. You are lucky if they have opened the file prior to calling your case in court much less have read anything and that includes the pleadings. It is highly unlikely it was read unless you have a non-busy family court judge and that is all he/she does. But he probably wouldn't even have it come across his desk unless it was mailed and addressed specifically to him which you could tell from the report. Then your beef is with whoever did the report.

Even if found in the court file and read, a Judge will usually say he isn't considering it until it is admitted into evidence. Same goes for hearsay evidence, once they hear it you can't unring the bell, but you trust their training to ignore it when they rule something is inadmissable due to hearsay.

Sometimes attorneys do pro bono work when they think the cause is just and don't want to see the right person get wronged because they can't afford to fight.

It seems that you are speculating about what may have happened. Stick to the facts: If the therapist was ordered to appear before the judge and did not, wouldn't that be contempt of court?

As for the opposing attorney, I'd say whether or not he is getting paid or receiving any other compensation is none of your business.

Wayne, I just saw Mark's response and remembered something else. In my state and many others, the law allows those kind of reports to go to attorneys but not to the parties. I can't even make a copy for my clients, even their own evaluation. Just to keep it from falling into the wrong hands. Since you are pro se, they won't send one to you. To answer Mark's question, reports are always sent in lieu of a court appearance/hearing. There appearance is only required when an evidentiary hearing is scheduled and the therapist is subpoenaed in for questioning by one side or both. Typically most reports are admitted by stipulation of the parties. If you think the therapist missed something then it would be up to you to subpoena them in whenever the case comes to hearing in which the report is going to be used. Also typically, when one side doesn't like a therapist's report, they hire a different therapist to make an evaluation and hopefully use your input. Then the court fight turns into dueling therapists. You can also write the therapist and provide them particular information to see if they would amend their report. That's how you can spend your life savings fighting these things.